Schwaber v. Schwaber
| Decision Date | 31 January 2012 |
| Citation | 91 A.D.3d 939,937 N.Y.S.2d 625,2012 N.Y. Slip Op. 00772 |
| Parties | Susan SCHWABER, respondent, v. Marc SCHWABER, appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Michael S. Cox, Lindenhurst, N.Y., for appellant.
Del Vecchio & Recine, LLP, Garden City, N.Y. (Charlene Malone of counsel), for respondent.
In a matrimonial action in which the parties were divorced by judgment entered November 14, 2008, the defendant appeals from an order of the Supreme Court, Nassau County (Maron, J.), dated February 17, 2011, which denied, without a hearing, his motion for a downward modification of his child support and maintenance obligations set forth in a settlement agreement dated July 1, 2008, which was incorporated but not merged into the judgment of divorce.
ORDERED that the order is affirmed, with costs.
The Supreme Court properly denied, without a hearing, the defendant's motion for a downward modification of his child support and maintenance obligations set forth in a settlement agreement which was incorporated but not merged into the judgment of divorce. The defendant failed to make a prima facie showing that his loss of employment constituted the substantial, unanticipated, and unreasonable change in circumstances necessary to warrant a downward modification of his child support obligation because he did not demonstrate that he diligently sought re-employment commensurate with his earning capacity ( see Baker v. Baker, 83 A.D.3d 977, 978, 922 N.Y.S.2d 442; Conway v. Conway, 79 A.D.3d 965, 912 N.Y.S.2d 700; Barson v. Barson, 32 A.D.3d 872, 873, 821 N.Y.S.2d 237). Moreover, the defendant's statement of net worth indicated that despite his loss of employment, he had sufficient means to provide child support at the level set by the parties in their settlement agreement ( see Matter of Kalarickal v. Kalarickal, 89 A.D.3d 846, 932 N.Y.S.2d 366; Jelfo v. Jelfo, 81 A.D.3d 1255, 1257, 916 N.Y.S.2d 427; Matter of Fragola v. Alfaro, 45 A.D.3d 684, 686, 845 N.Y.S.2d 437; Matter of Talty v. Talty, 42 A.D.3d 546, 547, 840 N.Y.S.2d 114). The defendant also failed to make a prima facie showing that continued enforcement of his maintenance obligation would result in the extreme hardship necessary to warrant a downward modification ( see Capozzoli v. Capozzoli, 81 A.D.3d 584, 585, 916 N.Y.S.2d 792; Klein v. Klein, 74 A.D.3d 753, 901 N.Y.S.2d 545; DiVito v. DiVito, 56 A.D.3d 601, 602, 867 N.Y.S.2d 334; Mahato v. Mahato, 16...
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